Monthly Archives: April 2012

What Can Mr. Brainwash Teach Us About Girl Talk?

Thierry Guetta, a/k/a Mr. Brainwash, is back in court for allegedly using photographs of famous musicians without authorization.  This time, however, he’s managed to drag Google into his mess.

By way of background, Guetta was sued in 2010 in the Central District of California by Gene Friedman, a photographer who took one of the most iconic photographs in hip hop, featuring Run DMC:
Guetta made several derivative works, which he commercialized on t-shirts and postcards, including:

and

To create the Broken Records Work, Guetta caused a digital image of the Photograph to be altered so as to remove most of the detail from its subjects, leaving an outline of the group’s features. … Guetta then had the image projected onto a large piece of wood and painted the image onto the wood.  Thereafter, Guetta glued more than 1,000 pieces of broken phonograph records onto the painted wood. The result was a three-dimensional image of Run-DMC created entirely from broken records. (Defendant’s Motion for Summary Judgment)

and
Guetta claimed that his derivative works were either transformative (and, therefore, fair use under § 107) or did not use copyrightable portions of Friedman’s original (and, therefore, could not constitute infringement).

In this case, the District Judge disagreed with Guetta.  Regarding the question of whether the portions of the photograph copied were copyrightable, Judge Pregerson concluded the Friedman “selected and arranged the subjects. Although the court believes that no more is
required, the court also notes that [Friedman] made related decisions about light and shadow, image clarity, depth of field, spatial relationships, and graininess that were all represented in the copyrighted Photograph. [Friedman] also selected the background
and perspective of the Photograph, and all of these particular artistic decisions commulatively result in the Photograph.”  Having found the photo copyrightable, Judge Pregerson quickly concluded that Guetta had, indeed, infringed Friedman’s copyright.

Regarding Guetta’s claim that his use was fair because the works were transformative, Judge Pregerson again disagreed, concluding that “[Guetta] has not offered a transformative alternative use of the Photograph image. Both [Friedman] and [Guetta] are artists, and the image was used by both in works of visual art for public display. Although the statements made by those respective artworks and the mediums by which those respective statements were made differ, the use itself is not so distinct as to render Defendant’s use a transformation of Plaintiff’s copyright.”

Judge Pregerson’s opinion is below.

Now, Guetta finds himself a defendant again, this time being sued by the estate of James Marshall for allegedly doing exactly the same thing with Marshall’s photographs as he did with Friedman’s; i.e., taking the photo and manipulating it to look different, while still being able to recognize the artist-subject matter. (Marshall v. Guetta, 12-cv-3423-SJO (C.D. Cal.).  So why is Google on the hook?  According to the complaint,  Google held an event to launch its music service at Guetta’s studio, where Guetta installed a backdrop using blown-up derivative works of Marshall’s photos of John Coltrane and Jimi Hendrix.

Here is a side-by-side comparison of Marshall’s original photo and Guetta’s:

The Google event at Guetta’s studio with the allegedly infringing art in the background :

And, what does all this have to do with Girl Talk?  Peter Friedman argued here that the reason mash-up artist Girl Talk has not been sued by the record labels is because the argument that Girl Talk “transformed the copyrighted materials sufficiently that his work constitutes non-infringing fair use is just too good.”  Judge Pregerson’s opinion appears to undercut such arguments.  For example, Guetta’s transformation was such that the underlying work was still identifiable (i.e., Guetta’s intent was for viewers to recognize his art as depicting Run DMC or Coltrane or Hendrix, thus capturing the essence of the original photo).  The same is obviously true for Girl Talk, who relies on listeners’ recognition of the underlying songs to make his music more popular.  Extending Pregerson’s logic, both Girl Talk and the recording artists he samples are are “artists” and though “the statements made by those respective artworks and the mediums by which those respective statements were made differ, the use itself is not so distinct as to render Defendant’s use a transformation of Plaintiff’s copyright.”

[scribd id=91845607 key=key-1fozc5g6zeihlvmk5j4r mode=list]

What is Hip? Suing Your Record Label for 50% of Digital Download Revenue!

Oakland, California-based Tower of Power has filed a class action lawsuit against Warner Music Group claiming to represent a class of plaintiffs whose recording agreements entitled them to 50% of revenue for digital downloads.  According to the complaint, which is provided below,

The WMG Agreement provided a significantly higher percentage of royalties under the licensed equation than under the sold equation. In general, the sold equation provides for royalties often percent (10%) (depending on the popularity of the artist, album and price the record was sold at; i.e., the more popular the artist, or the more expensive the album, the higher the royalty rate) while the licensed equation provides for royalties of fifty percent (50%) of net receipts. As a result, a recording artist or producer is paid a significantly lower percentage of the total money received by Defendant for their commercial exploitation of the artist or producer’s master recordings under the sold equation than under the licensed equation.

While I understand the strategic play, class certification is always hard in these circumstances, as even small differences in contractual language may have important implications for the applicable royalty rate.

What is clear is that these suits are going to become more and more common.

Complaint:
[scribd id=87692961 key=key-1b5xh00oq6v6kc88eugu mode=list]

No, Seriously.

Alfred Matthew “Weird Al” Yankovic is suing Sony for $5mm.  In addition to several  audit-related claims regarding alledgedly unauthorized recoupments and/or deductions, Weird Al has joined the ranks of Eminem, the Allman Brothers, Rick James, and others in claiming that Sony should have paid 50% of revenue for digital download sales.  According to the complaint, which is provided below, Weird Al’s 2002 agreement with Sony specifies that “notwithstanding any other royalty provision …, Sony will credit [Weird Al’s] royalty account with an amount equal to fifty percent (50%) of the Net Receipts from any royalty, fee, or other payment received by [Sony] directly attributed to a Master licensed by us for use (A) in the manufacture and/or distribution of Phonograph Records.” (internal citations omitted).  According to the complaint, “Phonograph Records” is defined in his agreement with Sony as including permanent music downloads, mastertones and ringtones.

Like several other suits, this case is being brought by Richard Busch of Nashville’s King and Ballow, who has cut quite a lucrative niche for himself after winning the landmark Eminem case before the 9th Cir.

Stay tuned…

Complaint:
[scribd id=87688742 key=key-2e0vos93a8ti6meleirw mode=list]

Mega-Hot – Megaupload Case Sparks Disney’s Summary Judgment Against Hotfile

The ripple effects of the federal government’s criminal copyright infringement case against piratical website Megaupload and its larger-than-life founder Kim Dotcom continue.  First, Disney used the indictment in its motion for summary judgment against Hotfile and its owner

Disney’s MSJ is below:
[scribd id=87490557 key=key-258pkczg9bdr88e9zvkk mode=list]

Then Carpathia, the hosting company that leased Megaupload more than 1,100 servers on which 25 petabytes of Megaupload files are hosted, filed a motion in the government’s suit alleging it is paying $9,000 per day to maintain Megaupload’s files. According to its motion,

The parties who have so far claimed some interest in the data on the Mega Servers include: (1) Mega, which claims to need the data preserved for its defense and so that it may be returned to its customers; (2) the United States government, which has disclaimed a need for the data but objects to the transfer of ownership of the Mega Servers from Carpathia to Mega; (3) the Electronic Frontier Foundation (the “EFF”), which claims to represent the interests of end users who have non-infringing content stored on the Mega Servers and has requested that the data be preserved in order to facilitate its return to Mega users who have not engaged in copyright infringement; and (4) the Motion Picture Association of America (the “MPAA”), which, on behalf of its member studios, asserts a copyright interest in certain data purportedly located on the Mega Servers, has requested that Carpathia preserve the data in order to facilitate potential civil claims against Mega and the other Defendants in this action, and has indicated that it objects to any transfer of the data to third-parties

Carpathia is asking the court to use its discretion “under Fed. R. Crim. P. 16 and enter a protective order either: (1) allowing Carpathia to reprovision the Mega Servers after a brief period of access has elapsed; (2) requiring one or more of the parties to this action to take possession of the Mega Servers in exchange for reasonable compensation to Carpathia; or (3) requiring any and all interested parties to compensate Carpathia for the substantial costs of transporting and continuing to maintain the Mega Servers until the conclusion of this action.”

Carpathia’s motion is below:
[scribd id=87492411 key=key-x882ywzfnvomesfvg24 mode=list]

Now a civil action has been filed by Microhits, which claims to own “federally registered copyrights on sound recordings featuring the musical performances of the legendary Billie Holiday, Nat King Cole, Marvin Gaye, Frank Sinatra, AI Martino, Donny Hathaway, Rod Stewart, Muddy Waters, Howlin’ Wolf, Lightnin’ Hopkins, Junior Wells, Nina Simone, Louis Armstrong, Jerry Lee Lewis, Herbie Mann, and Bob James as well as such well-known modern artists as Missy Elliott, Christina Aguilera, Vanessa Hudgens” and Valcom, which claims to own “federally registered copyrights which includes feature films and television programs starring Denzel Washington, Bill Murray, Jackie Chan, Charlton Heston, Ronald Reagan, George C. Scott, Martin Sheen, Judy Garland, Bela Lugosi, John Carradine, Roy Rogers, Richard Chamberlain, Martin Landau, January Jones, Ryan Seacrest and many others.”  The plaintiffs are represented by the law firm Dunlap, Grubb and Weaver, the infamous plaintiff’s firm that brought mass John Doe lawsuits against BitTorrent users.

The Complaint is below:
[scribd id=87492040 key=key-zvcnxdz2lnwf4ekq6bq mode=list]